Chemerinsky: Arizona Immigration Case Closes a Momentous Court Term

Oral arguments in the U.S. Supreme Court’s October Term 2011 will end April 25 with one of the most important and politically controversial cases of the year: Arizona v. United States. The issue before the court is whether key provisions of Arizona’s statute SB 1070—which calls on state and local law enforcement to aggressively enforce federal immigration laws—are preempted by federal law. The case poses basic questions about the allocation of power between federal and state governments and does so in a context that arouses deep emotion on both sides.

In 2010, Arizona adopted SB 1070, titled, “Support Our Law Enforcement and Safe Neighborhoods Act.” It sought to use the resources of Arizona state and local governments to help control illegal immigration. Its preamble states that its purpose is to make “attrition [of undocumented aliens] through enforcement the public policy of all state and local governments in Arizona.”

In the summer of 2010, federal district Judge Susan Bolton issued a preliminary injunction as to four provisions of SB 1070. The four provisions she enjoined were:

• Section 2, which requires state and local officers to verify the citizenship or alien status of people arrested, stopped or detained. Section 2(B) provides that “for any lawful stop, detention or arrest made” by Arizona law enforcement, “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.”

• Section 3, which makes it a crime in Arizona for a person to be unlawfully in the United States and to fail to register with the federal government. It requires that non-citizens carry registration papers showing that they are lawfully in the United States.

• Section 5, which makes it a crime in Arizona for a person who is not lawfully in the United States to work or seek work in the state. Section 5(C) makes it a misdemeanor for “a person who is unlawfully present in the United States and is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.”

• Section 6, which authorizes state and local police to arrest without warrants when “the officer has probable cause to believe … [t]he person to be arrested has committed any public offense that makes the person removable from the United States.”

The 9th U.S. Circuit Court of Appeals, in a 2-1 decision, affirmed Judge Bolton. On Dec. 12, the Supreme Court granted certiorari, with Justice Elena Kagan recusing herself from participating because of her involvement with the case when she was the U.S. solicitor general. Thus, there is a real possibility of a 4-4 split in the Supreme Court, which would mean that the 9th Circuit decision would be affirmed without opinion.

It is striking that the briefs of Arizona and the United States disagree about everything that is before the court. First, the two sides disagree as to the context in which the court should approach the case. Arizona begins its brief with a long section on “illegal immigration’s disproportionate impact on Arizona.” It spends the first seven pages of its brief describing the effect of illegal immigration on Arizona in terms of crime, government benefits and employment.

By contrast, the brief for the United States begins with a long section describing “the comprehensive federal immigration framework.” The United States brief begins with almost eight pages describing the detailed system of federal immigration regulation.

This difference is not coincidental. Arizona wants the justices to see this case from the perspective of a state dealing with a serious problem and acting to protect itself and its citizens. The United States wants the justices to view this matter as involving an area which is traditionally and inherently under the control of the federal government.

Second—and surprisingly—the two sides disagree about the standard the court should use when deciding whether federal law pre-empts state law. Arizona repeatedly states that in the absence of an express preemption provision in a federal law, a state law is preempted only if there is a conflict between federal and state law. Its brief states: “The bottom line is that there is no preemption unless state law conflicts with some identifiable federal statute.” Arizona argues that there is no conflict between SB 1070 and federal law; its primary argument is that SB 1070 is using the resources of state and local law police to supplement and enhance federal efforts.

The United States, though, says that a conflict between federal law and state law is not required for preemption; there is preemption if a state or local government interferes with achieving a federal objective. It sees Arizona’s law as doing this. The United States contends that inevitably decisions about immigration enforcement implicate issues of foreign policy and that is in the sole domain of the national government. The United States relies heavily on the Supreme Court’s 1942 decision, Hines v. Davidowitz, which said that immigration enforcement necessarily implicates “important and delicate” considerations of foreign policy and that therefore states cannot “contradict” or “complement” federal immigration efforts.

In fact, the two briefs treat Hines very differently. That case involved a Pennsylvania law that in some ways was similar to SB 1070. For example, it required non-citizens to carry papers showing that they were lawfully in the country. The Pennsylvania statute required aliens to register with the state, carry a state-issued registration card, and pay a small registration fee. The Supreme Court found the Pennsylvania law to be pre-empted and the United States, like the decisions of the federal district court and the 9th Circuit, relies on this precedent throughout its brief. Arizona barely mentions the case, not citing it for the first time until page 52 of its brief.

Third, Arizona and the United States differ as to the role of the states in enforcing federal law. Arizona repeatedly argues that states have the “inherent” power to enforce federal law. But the United States denies such inherent authority and argues that Congress has not authorized such state enforcement in the area of immigration. The two sides sharply disagree as to whether the provisions of SB 1070 are cooperative law enforcement or state interference with federal authority.

For example, Arizona sees Sections 2 and 6, which have state and local police enforcing questioning and arresting those thought to be illegally in the United States, as using its resources to help the federal government identify and detain those illegally in the country. But the United States believes that it has discretion to choose whether and how to enforce immigration law and that state efforts like those mandated by SB 1070 are inconsistent with that discretion.

Similarly, Arizona sees Section 5, which makes it a crime for a person not lawfully in the country to work or seek work in Arizona, as an effort to help enforce a federal law which makes it a crime for employers to hire such individuals. But the United States says that this is pre-empted because Congress considered and rejected such a provision; Congress chose to put sanctions solely on employers who hire undocumented workers.

It is also worth noting what is not before the court. This case involves the question of whether these provisions of SB 1070 are facially invalid as pre-empted by federal law. So the court will not consider the question of whether SB 1070 will lead to racial discrimination in law enforcement. If the court upholds these provisions of SB 1070, surely there will be as-applied challenges on this basis. SB 1070 has a provision that outlaws racial profiling, but challengers argue that reasonable suspicion that a person is unlawfully in the country will inevitably be based on the individual’s name and skin color.

The decision is likely to have great consequences. After Arizona adopted SB 1070, other states, such as Utah, Indiana, Georgia, South Carolina and Alabama, adopted similar, and in some instances stricter, laws. If SB 1070 is upheld, it is likely that other states will do so as well. Such statutes will have a real effect on peoples’ lives. And the political controversy over such laws is intense. A national boycott of Arizona was organized after it adopted SB 1070.

In a term filled with blockbuster cases, such as the constitutionality of the Patient Protection and Affordable Care Act, it seems only fitting that the last case to be argued will be one of enormous public interest and potentially tremendous importance.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.